Hale v. Ward Cnty.

• Decision Date: 12 July 2012
• Docket Number: No. 20110171.,20110171.
• Citation: 818 N.W.2d 697,2012 ND 144
• Parties: Robert HALE, individually and State of North Dakota, ex rel. Robert Hale and Susan Hale, Plaintiffs and Appellants, v. WARD COUNTY, City of Minot, Defendants and Appellees and Bea Shaw, Defendant.
• Court: North Dakota Supreme Court

818 N.W.2d 697

2012 ND 144

Robert HALE, individually and State of North Dakota, ex rel. Robert Hale and Susan Hale, Plaintiffs and Appellants,

v. WARD COUNTY, City of Minot, Defendants and AppelleesandBea Shaw, Defendant.

No. 20110171.

Supreme Court of North Dakota.

July 12, 2012.

Lynn M. Boughey, Bismarck, ND, for plaintiffs and appellants.

Bradley Neuman Wiederholt (argued) and Randall Joseph Bakke (on brief), Bismarck, ND, for defendants and appellees.

CROTHERS, Justice.

[¶ 1] Robert and Susan Hale appeal a district court summary judgment dismissing their nuisance and governmental takings claims against Ward County and the City of Minot. We affirm in part, reverse in part and remand for further proceedings.¹

I

[¶ 2] Robert and Susan Hale have a house on what is otherwise agricultural land approximately one mile southeast of a shooting range used for training Minot area local, state and federal law enforcement officers (“law enforcement shooting range”). A separate range operated by the Minot Rifle and Pistol Club is immediately north of the Hales' property. Several other farms and homes are located in the vicinity of the Hales' property and the law enforcement shooting range, and Ward County Road 12 runs adjacent to the law enforcement shooting range.

[¶ 3] On June 24, 2009, Robert Hale brought a civil action against Ward County and Minot, alleging the law enforcement shooting range was a private and a public nuisance and the shooting range devalued his property, resulting in a governmental taking. Hale asserts the Ward County Commission zoning decision considered by this Court in Gowan v. Ward County Commission, 2009 ND 72, 764 N.W.2d 425, conclusively proves his claim. In 2007, David Gowan applied to have a plat of land located approximately one-quarter mile downrange from the law enforcement shooting range rezoned from agricultural to residential for development of a 12–lot subdivision. The Ward County Planning Commission recommended denying Gowan's request, in part due to safety concerns resulting from the proximity of the land to the law enforcement shooting range. Gowan appealed to the Ward County Commission. After considering the application at two meetings, the County Commission approved the Planning Commission's recommendation and denied Gowan's rezoning request. The County Commission issued detailed findings supporting its decision, including several findings regarding the safety concerns resulting from the proximity of Gowan's property to the law enforcement shooting range. Gowan appealed to the district court, and the district court affirmed. Gowan appealed to this Court, and we affirmed. Gowan, 2009 ND 72, 764 N.W.2d 425. Hale's complaint in this case alleged the County Commission's findings in Gowan about safety concerns associated with the shooting range applied “presently and equally to Robert Hale and others who live near the rifle range, as well as to persons driving along the county road that runs adjacent to and around the rifle range.” Hale alleged he “live[d] to the southwest of the rifle range and [was] in a position of danger, and probably more danger than anyone on Mr. Gowan's property.”

[¶ 4] On August 7, 2009, Hale moved for summary judgment on his nuisance claims. Hale's brief in support of the motion included an affidavit of Robert Hale, maps of the area at issue, the Ward County Commission transcripts and findings from the Gowan zoning decision, the district court order affirming the County Commission's decision and this Court's decision in Gowan, 2009 ND 72, 764 N.W.2d 425. Hale highlighted the importance of the location of his property by referencing testimony to the County Commission detailing the danger to land southwest of the shooting range and by explaining the importance of the location in his affidavit:

“I live to the southwest of the firing range. The firing range is less than one mile from my property and approximately one mile from my home. My property is approximately 1650 to 1680 feet from the range.

....

“My property ... is directly in the line of fire because I live directly southwest of the firing range. The testimony provided by law enforcement officers specifically stated that the real danger is to the southwest.”

[¶ 5] On August 11, 2009, Ward County and Minot filed an answer. On September 4, 2009, Ward County and Minot filed a cross-motion for summary judgment. Ward County and Minot argued summary judgment should be granted in their favor because the shooting range was a sport shooting range that could not be deemed a nuisance under N.D.C.C. § 42–01–01.1. Alternatively, Ward County and Minot argued several genuine issues of material fact existed, including the location of Hale's residence, the range of the weapons used at the shooting range, whether Hale's neighbors believed the range presented a danger, whether Hale used County Road 12 and whether Hale came to the nuisance. Ward County and Minot asserted Hale's property was located southeast of the shooting range and Hale's home was 1.6 miles or approximately 8,448 feet from the shooting location.

[¶ 6] On November 6, 2009, Hale filed a reply to the cross-motion for summary judgment. Hale asserted N.D.C.C. § 42–01–01.1 did not prevent the law enforcement shooting range from being deemed a nuisance. Hale also stated he lived southeast of the shooting range, explaining the assertion he lived southwest of the shooting range was the result of his attorney's mistaken belief that Hale lived southwest of the range and Hale's failure to notice the error when he reviewed the complaint. Hale filed a second affidavit in which he asserted his property was “in as much danger or more than Mr. Gowan,” explaining:

“In regards to chemical munitions, North Dakota generally has a northwesterly wind, which means I am normally directly downwind from the range. And unlike the Gowan property, a sniper bullet could more easily reach my property. Mr. Gowan has a large hill between his property and the range; if a bullet goes wayward; it would hit the hill or fly (most probably) well beyond his property. I, on the other hand, would be more subject to a rifle bullet reaching my land.”

The same day Hale filed his reply, he moved to amend his complaint to allege he lived “southeast” of the law enforcement shooting range. Hale also moved to amend the complaint to add Susan Hale as a plaintiff. Hale stated Susan Hale had an ownership interest in the Hale property and asserted the duration of her family's ownership was relevant to the issue of coming to the nuisance.

[¶ 7] On December 4, 2009, the district court held a hearing on the motions for summary judgment. On December 8, 2009, the district court issued an order finding genuine issues of material fact existed and denying the summary judgment motions. On December 10, 2009, the district court granted Hale's motion to amend his complaint, and the Hales filed an amended complaint.

[¶ 8] On December 2, 2010, the Hales moved for a temporary restraining order closing the law enforcement shooting range and for “declaratory judgment.” In support of the motions, the Hales submitted an additional affidavit in which Robert Hale elaborated on the danger to their property:

“Law enforcement personnel testified at the Ward County Commission to the Commission and confirmed that testimony through their lawyer at the appeal to the district court and to the North Dakota Supreme Court (Gowan v. Ward County ) that the range is unsafe and creates a hazard to people who may be on the Gowan property which is adjacent across County Road 12 to the gun range. I live to the southeast of the firing range. The firing range is less than one mile from my property and approximately one mile from my home. My property is approximately 1650 to 1680 feet from the range. Gowan's property, however, is at a slight angle away from the general line of fire, that is to the right. My property, however, is in the line of fire because I live southeast of the firing range at the opposite angle of the line of fire to the Gowan property. If Gowan's property is in danger (0 to 90 degrees to the right of the firing line) then so is my property (which is well within 90 degrees to the left). The testimony provided by law enforcement officers specifically stated that the real danger is to the south, and a portion of my land is in the direction to the south.”

Ward County and Minot resisted both motions. On December 17, 2010, the district court held a hearing on the Hales' motions and denied them on January 25, 2011.

[¶ 9] On December 15, 2010, Ward County and Minot moved for summary judgment on the private nuisance, public nuisance and takings claims. Ward County and Minot argued the Hales had not raised genuine issues of material fact whether the law enforcement shooting range was a private or public nuisance and had failed to support their takings claim with law or evidence. On February 11, 2011, the Hales responded, arguing genuine issues of material fact precluded summary judgment. In addition to the evidence provided to support the previous motions, the Hales included excerpts of the deposition testimony of eleven witnesses; minutes from meetings at the law enforcement shooting range; documents evidencing the ownership history of the Hales' land; additional maps illustrating the location of the shooting range relative to the Hales' property; and photographs of the range, County Road 12, bullet holes in metal signs outside of the shooting range and bullet holes in wooden signs inside the range. On February 28, 2011, the Hales filed a cross-motion for summary judgment “on the limited issue that as a matter of law [the] city's rifle range creates a nuisance to County Road 12 and as such the nuisance must be abated by shutting the range down.”

[¶ 10] On March 30, 2011, the district court held a hearing on the summary judgment motions. On June 7, 2011, the district court signed an order granting Ward County and...